« PreviousContinue »
INS has stated that, in practice, it actually uses a four-classification system which does not include the category "misconduct not based on the original complaint."64
volved, the National Advisory Commission on Criminal Justice Standards and Goals recommends the use of five classifications in disposing of investigated complaints: "sustained,” “not sustained," "exonerated," "unfounded,” or “misconduct not based on the original complaint."61 Briefly, an allegation would be "sustained" when an accused employee committed all or part of the alleged acts of misconduct, while a "not sustained" disposition indicates that the investigation produced insufficient information either to prove clearly or disprove the allegations. “Exonerated” is used where the alleged act did occur, but was justified, legal, and proper in view of all the circumstances. A complaint would be "unfounded” where the alleged act did not occur, while a finding of "misconduct not based on the original complaint” indicates that there is evidence of misconduct other than that alleged in the original complaint. The National Advisory Commission considers inclusion of the last category of "misconduct not based on the original complaint” as necessary to ensure that the public does not misinterpret the number of sustained complaints reported. 62
Under the INS complaint procedures as set forth in the Operations Instruction, an allegation is classified in one of only two categories, either as "sustained,” where the facts developed by investigation reasonably support the allegation of misconduct, or “not sustained,” where the investigation fails to substantiate the allegation of misconduct.63 No definition is provided for the terms “reasonably support” or “fails to substantiate," and no clear evidentiary standard is set forth to guide the decisionmaker in determining whether an allegation should be sustained. Although the Operations Instruction sets forth only two categories for complaint disposition,
Selection of Investigators
Investigators who conduct Office of Professional Responsibility field investigations are selected by the appropriate Regional Commissioner or by the Director of OPR.65 Such investigators usually handle professional integrity cases only on a part-time basis and are drawn from the Service's existing pool of investigators, 66 whose full-time duties primarily consist of doing background searches on applicants who seek immigration benefits.
Although INS does recognize and designate certain types of investigations as being more complex than others and has attempted to allocate its most experienced investigators to such cases, 67 there is apparently no written standard, procedure, or guideline used by INS to select investigators to handle professional integrity cases.68 When asked to describe the selection procedures, OPR Director Paul Kirby testified: “We try to take the most capable men, and we have asked for volunteers. They like to put it in their resumes, but I don't think they like to be called an 'internal investigator'."69
A Regional Commissioner or the Director of OPR may, in fact, consider the complexity of a case and the relative experience of an investigator in deciding case assignments. However, such consideration is not required under INS procedures as set forth in the Operations Instruction, leaving open the possibility that a complex case will be given to an inexperienced officer and a simple case to a seasoned officer. In its 1977 Annual Report to the Attorney
ational Advisory Co sion on Criminal Justice Standards and Goals, “Report on Police," pp. 487-88. « Ibid., p. 488. The National Advisory Commission report stated:
Without the category of “misconduct not based on the original complaint," the number of sustained complaints might be subject to public misinterpretation. The investigation of complaints from the public alleging such acts as excessive force, discourtesy, and dishonesty, frequently are not sustained because of lack of sufficient information. During the investigation, however, such acts of misconduct as failing to prepare a report, improperly disposing of property, or some other irregularity, might be discovered. If the complaint simply is classified as sustained, it is difficult to know whether the judgement is based upon the original allegation or upon misconduct discovered
later. * OI 287.10(m). A sustained allegation of category I misconduct is referred to a U.S. attorney for possible prosecution, while a sustained allegation of category II misconduct is submi, od to an INS Associate Commissioner for Management for appropriate corrective action. In the case of an unsustained allegation, the file is closed anu a letter from the Director of OPR or a Regional Commissioner is sent to the involved employee notifying him of this disposition.
64 INS has described its procedures as follows:
The terms "sustained,” “not sustained," "exonerated," and "unfounded" are used by our Office of Professional Responsibility despite the fact that Service Operations Instruction 287.10 sets forth only the terms "sustained" and "not sustained." These terms are used by the Professional Responsibility staff as set out in chapter 23 of the INS Investigator's Handbook, page 6. The term "misconduct not based on the original complaint" has not previously been used by our Professional Responsibility staff but most certainly can be added to our list of
terms. Castillo Letter, p. 8. 65 OI 287.10(1)(2). 66 Kirby Testimony, Washington Hearing Transcript, p. 73. 87 The Operations Instruction provides that an OPR staff officer from the Central Office should be assigned to conduct investigations involving certain category 1 offenses committed by supervisory officer corps employees or managers. OI 287.10(k)(2)(i), (iii). 68 OI 287.10(1)(2) merely provides that the “Director of OPR or Regional Commissioners (or their designee) will select an employee to conduct a preliminary inquiry." ** Kirby Testimony, Washington Hearing Transcript, p. 73.
General, the Department of Justice's Office of Professional Responsibilityto reported that INS did not assign its most experienced investigators to handle complex and serious cases of professional integrity." An investigator's experience in handling OPR cases has been an especially important consideration because, until 1978, no special training in techniques for investigating professional integrity cases was available to inexperienced officers. Informal training is now provided by the Deputy Director of OPR, who "went out into each of the regions and drew on people from the regions to instruct them in OP(R)-type investigations. These are investigators from all fields in INS."72 INS has stated that it is Service policy to assign professional integrity cases to only those investigators who have received training in handling such cases. 73
To minimize possible professional or personal conflicts in the conduct of preliminary inquiries and full investigations, nonsupervisory investigators assigned to a case may not be from the same operating branch as the accused employee,74 but they may handle cases arising in the region to which they are assigned. Supervisory investigators have fewer restrictions and are also allowed to handle cases in their same district or sector. Given the structure of the INS career ladder and the high degree of mobility within the officer corps, the current scheme as set forth in the Operations Instruction permits an investigator to handle a case involving a past or prospective supervisor, an employee he or she has supervised, or a friend or colleague, even though INS has stated that its investigators are questioned as
to any prior relationships before they are assigned to a case.75 Although current provisions for the assignment of investigators are an improvement over previous procedures, it is still possible that investigators may be influenced, consciously or not, by their working relationship with the employees they are investigating
Law enforcement agencies, such as INS, that have daily contact with the public in the performance of their duties have an obligation to assure those communities that the law is administered in a fair and impartial manner. It has been recognized that, in establishing a disciplinary system to process misconduct complaints against police officers, the internal investigation unit should include minority-group officers as well as white officers, and it is preferable that all officers have an established reputation for fairness in the minority community. The selection of officers for their investigative ability, fairness, and commitment to the elimination of officer misconduct or misuse of authority is an important consideration in creating a good relationship between the community and a law enforcement agency.
Investigators assigned to perform professional integrity investigations are selected from the current pool of INS criminal investigators. A breakdown of INS investigators by race, national origin, and sex for fiscal year 1978 reveals that, out of a total of 1,076 investigators, 130 (approximately 12 percent) were members of minority groups. Of this number, 44 investigators were black, 81 were Hispanic, 4 were Asian American, and 1 was American Indian. There were 46 female investigators, but no statistics
Castillo Letter, pp. 8–9. It should be noted, however, that these provisions have not been incorporated in OI 287.10 or the l&NS Investigator's Handbook ** OI 287.10(j) & (k). 75 In a letter to the Commission, the INS stated:
It should also be noted that all field officers assigned Professional Responsibility investigations are under the direct control of a Central Office staff officer who advises and guides that field officer during his investigation. Prior to any assignment, field officers are questioned as to any prior acquaintances or relationship they may have had with the accused employee. If a prior relationship exists or for any reason the field officer feels that he cannot properly conduct the investigation because of the accused employee's position, another field officer will
10 In 1977 the Justice Department's Internal Audit staff reviewed the
The selection of field officers to conduct these investigations is made
be selected. Our aim is total impartiality and objectivity.
niques as well as providing him with another basis for evaluating the performance of his agency. 84
were provided as to their ethnic breakdown. Of the total 115 supervisory investigators, 8 (approximately 7 percent) were members of minority groups. Five supervisors were black, 3 were Hispanic, and none was female. 78
In fiscal year 1978, relatively few minority investigators actually handled misconduct complaint investigations. Only 15 Hispanics and 7 females were assigned to investigations of the 354 cases opened in FY 1978.79 Director Kirby concluded that "it appeared from the review conducted and to the best of our knowledge that the remainder of the investigations were conducted by white males.”80
Compilation of Complaint
The internal investigations units of law enforcement agencies should maintain “[c]omplete records of complaint reception, investigation, and adjudication" so that statistical summaries can be compiled and published on a regular basis for all agency personnel and made available to the public.81 Although it is necessary to keep complaint investigations confidential to protect the privacy of accused employees, public disclosure of statistical summaries of complaint records “does not violate the confidential nature of the process,
,982 and, in fact, “such disclosure is often valuable because it tends to dispel allegations of disciplinary secrecy voiced by some community elements."83
Removal of the shroud of secrecy is not the only benefit that can be derived from compilation of complaint statistics. Statistical summaries of complaint records can also be used as a management tool. As one national study on relations between law enforcement agencies and the community stated:
Statistics can be useful in revealing "the number of complaints made against various units and members of the department”85 and therefore help identify agency problem areas so that management can develop solutions before problems reach a critical point. OPR Director Paul Kirby recognized in his testimony that a study of the types of complaints received, “if it shows that the same people might be committing these same offenses,” might be useful to INS in developing solutions to the problem of officer misconduct.86
Although the Office of Professional Responsibility submits monthly reports to the Department of Justice and tabulates the staff hours expended in processing OPR cases, there is no requirement that it compile or make public any statistics. Before January 1979, no statistical analysis had been made of the source of complaints received by INS to determine the relative number of allegations filed by INS employees, other United States citizens, or aliens. 87 Moreover, no statistics were compiled on the disposition of misconduct investigations.
In order to provide the Commission with some statistics, OPR reviewed its case files in October 1978. That review, “as complete as (OPR’s) records permit,” disclosed that only a breakdown by job categories of accused INS employees could be obtained for the 224 complaints of physical abuse of aliens received by the Service between February 1974 and October 1978.88 The memorandum containing this information further stated:
Complaints from the public provide the police chief executive with invaluable feedback. The complaints, whether factual or not, increase his awareness of actual or potential problems and assist him in his use of problem solving tech
Our records, which are incomplete, show that investigation sustained 20 of these allegations and that 26 are presently unresolved. The remainder were either not sustained or there is no record of the results of the investigation.89 Steps have recently been taken, however, to compile statistical data as to the types of complainants filing allegations and the disposition of such complaints. In January 1979, Director Kirby, responding to a Commission request for such statistics, provided data for those complaints filed during fiscal year 1978,90 thereby indicating that the raw data necessary for gathering these statistics do exist. In 1979 the INS stated that it planned to computerize OPR case statistics and to publish such statistics when they became available.91
# Ibid., p.
78 Paul Kirby, letter to Office of the General Counsel, U.S. Commission on
Statistically, of the approximately 140 investigators, including trained
B1 National Advisory Commission on Criminal Justice Standards and
Findings and Recommendations Finding 8.1: Swift complaint resolution must be achieved to protect the public from misconduct by INS officers and to protect officers from unfounded allegations.
Prompt investigation of misconduct complaints is important for establishing good INS-community relations, for it enhances the integrity of INS in the enforcement and administration of the immigration laws. Although the INS has made substantial inroads into reducing its backlog of Office of Professional Responsibility cases, a significant backlog still exists. Recommendation 8.1: INS should carefully monitor and enforce the new 60-day maximum investigative time limit imposed on Office of Professional Responsibility cases. INS should notify both the complainant and the accused employee of any delay in completing the investigation where an extension of investigative time is necessary. Finding 8.2: Public awareness of the INS complaint process is important for reducing incidents of officer misconduct and for improving INS-community relations.
Although INS has taken steps to establish greater public awareness of its complaint process, segments of the public and some agency employees are not fully apprised of the exact procedure. Recommendation 8.2: a. INS should take immediate action to design and implement a more comprehensive and systematic procedure to inform the public of the existence of the Office of Professional Responsibility and the process to be used in filing complaints of misconduct. At a minimum, this procedure should include:
Posting signs in all INS offices;
Creating and using easily comprehensible complaint forms, in English and in other major languages;
Making complaint forms available in all INS offices; and
Supplying complaint forms to community organizations dealing with persons who may wish to
file complaints. b. INS should take prompt action to ensure that Service employees are informed of the existence of the complaint mechanism and the proper procedure to be used in filing complaints. In addition, each INS employee should have available an adequate supply of complaint forms or immediate access to them. Finding 8.3: The current INS complaint process as set forth in its Operations Instruction does not require notification to the complainant of the receipt of his or her complaint, of the initiation of the investigative process, or of the results of the investigation. To assure the public that an agency is interested in preventing employee misconduct, a complaint process must treat complainants fairly and respond to their complaints. Courteous treatment of complainants and acknowledgment of their complaints are two necessary elements of a good complaint system. Recommendation 8.3: INS should provide more information to complainants by amending Operations Instruction 287.10 to require the following: a. Each complainant, upon filing a complaint, shall be provided a copy of the appropriate Office of Professional Responsibility investigation procedures and appeal provisions. b. Each complainant shall receive written verification from the Office of Professional Responsibility that the complaint has been received and is being investigated. c. Each investigator assigned to a case must interview the complainant and any other eyewitnesses to the incident. d. Each complainant shall receive written notification of the result of the investigation into his or her complaint and the sanction, if any, imposed on the officer involved. Finding 8.4: The INS has taken significant steps to upgrade its complaint-process procedures through the reorganization of its internal investigations unit
" Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979. " The Service has recently stated that:
Currently our Office of Professional Responsibility is working with the Service's automatic data processing staff to computerize all case
statistics. It is anticipated that full computerization of these records will be a reality in the very near future. At that time our statistics will be readily available and it is our intent to publish these statistics in the
INS Annual Report. Castillo Letter, p. 10.
and the implementation of a new Operations Instruction. Deficiencies, however, remain in the revised complaint process: a. No requirement exists in the Operations Instruction that an investigator be notified in writing of his or her assignment, along with the facts alleged in the complaint, or that he or she receive a copy of the complaint or any supporting documentation provided by the complainant. b. The ambiguous "reasonably support" standard for determining whether a further investigation should be conducted may result in meritorious complaints being summarily closed. “Reasonably support" is not defined in the Operations Instruction nor are guidelines provided for applying this evidentiary standard. c. The INS complaint disposition categories, as set forth in the Operations Instruction, of “sustained" and “not sustained" inadequately describe the actual disposition of complaints by the Office of Professional Responsibility. They fail to account for unfounded complaints, situations in which an accused employee is exonerated, and cases involving misconduct not based on the original complaint. Recommendation 8.4: INS should amend Operations Instruction 287.10 to include the following provisions to improve the existing complaint investigation process:
When investigators are assigned to cases, they should be notified in writing of the assignment. They should also be provided with a copy of the complaint or a written statement of the allegations involved. When investigators are assigned to handle a full investigation, they should be given a copy of the preliminary report for that case. b. A complaint should be dismissed only where a preliminary inquiry does not uncover any evidence of misconduct by an INS employee. The existing standard, which requires that the facts developed must "reasonably support" the allegation, is vague and therefore subject to inconsistent interpretations by decisionmakers. A complaint should not be dismissed after a preliminary inquiry where such inquiry does not clearly exonerate the accused employee.
Final disposition of complaints should not be restricted to the two currently existing categories of “sustained" or "not sustained,” but should be expanded to include the five categories of “sustained,”
"not sustained," "exonerated," "unfounded," and "misconduct not based on the original complaint.” Such an expanded system allows the decisionmaker greater accuracy and flexibility and increases public faith in the integrity of investigations by the Office of Professional Responsibility. Appropriate evidentiary inquiries should be conducted with a view towards the evidence required for each of the five possible ultimate dispositions of complaints. Finding 8.5: There is currently no appeal process, in either the INS or the Department of Justice, for complainants whose allegations of INS officer or employee misconduct have not been sustained through investigation of the complaint by INS. Recommendation 8.5: A Board of Review, as this Commission has recommended in previous public statements, 92 should be established. The members of that Board should be appointed by the Attorney General and its jurisdiction should include the review of INS misconduct complaints where the complainant files an appeal from the finding of the INS investigation. Finding 8.6: Current INS guidelines as set forth in Operations Instruction 287.10 for selection of Office of Professional Responsibility investigators are inadequate and do not specify the procedure to be followed or particular criteria to be considered in selecting investigators. Inquiries into employees' professional conduct are sensitive operations and require experienced and conscientious investigators. The selection of persons to handle such cases is an important process and should be carefully monitored to ensure that only the best officers are chosen. Recommendation 8.6: INS should amend its Operations Instruction 287.10 to include specific procedures to be followed by officers wishing to apply for such duty and to include guidelines to be applied in selecting Office of Professional Responsibility investigators. These guidelines should require consideration of such factors as: a. an appropriate level of experience and skill in conducting investigations, and b. a demonstrated attitude of fairness, thoroughness, and conscientiousness on the part of the applicant. Finding 8.7: The guidelines for assignment of investigators to misconduct cases are inadequate.
The complaint process as set forth in Operations Instruction 287.10 does not require that the most
52 Arthur S. Flemming, Chairman, U.S. Commission on Civil Rights, statement, in The Federal Bureau of Investigation Charter Act of 1979:
Hearings on S. 1612 Before the Senate Committee on the Judiciary, 96th Cong., 1st sess. (Oct. 24, 1979).